Canadian Jurisdiction of Marriage
If you have ever wondered what gives our government the right to legislate in the areas of marriage and divorce, then the following will provide some clarity:
Marriage is split between federal and provincial jurisdiction. Section 91(26) of The Constitution Act, 1867, 30 & 31 Vict, c 3 gives the federal government jurisdiction over marriage. This means that the federal government has jurisdiction over the capacity to marry and has jurisdiction over divorce.
Section 92(12) of The Constitution Act gives provinces dominion over the solemnization of marriage. Section 92(13) of the The Constitution Act gives the provinces exclusive authority over property and civil rights. Therefore, provincial governments can enact conditions and procedure relating to marriage through provincial legislation.
Child support, child custody, and spousal support are all dual in nature and this means that they fall under the legislative authority of both the federal and provincial government. The federal government is able to legislate under these areas as child support, child custody, and spousal support are considered necessarily ancillary to the divorce power and as such fall within the scope of section 91. The provincial government is also able to legislate in these areas as child support, child custody, and spousal support fall within the scope of section 92.
If you are interested in chatting about the wonders of our constitution or if you require legal representation or advice, then please call Proskiw Law at 780-665-4944 to set up a consultation.